Jacob v. Watkins

This action is in replevin to recover a piano and damages for its detention, The plaintiff and his co-partñérs consigned -the piano to one .John McCramm for sale on their account, the piano to remain their property until sold by McCramm;, The property was seizedqn an execution against McCramm and sold-to the defendant.

We-think it plain that the deten dent acquired no title to the piano by the execution sale against McCramm.- The ruling -of the *423trial court in this respect was correct. But the value of the property was to be assessed by the jury. The plaintiff’s testimony in that respect was not conclusive. The constable who made the sale, which, of course, was at public auction, testified to the price realized at the sale. Subsequently, on the motion of the plaintiff, this evidence was stricken out. We think this was fatal error. It is settled by authority that the price which property.realizes at a public sale is evidence of its value. (Campbell v. Woodworth, 20 N. Y. 499 ; Gill v. McNamee, 42 id. 44.)

For the error in excluding this evidence, and also in refusing to submit the question of value to the jury, the judgment appealed from must be reversed and a new trial ordered, costs to abide event.

All concurred.

Judgment and order reversed and a new trial granted in the County Court, costs to abide event.